Unwanted Facebook Photo: Invasion of Privacy?

By Maryam K. Ansari, Esq. on March 22, 2013 4:45 AM

If someone takes a picture of you and posts it on Facebook without your permission, is that technically an invasion of privacy?

Imagine you're at a party and someone posts a photo of you drinking or making a rude gesture. Or what's also pretty common, imagine you and your ex break up, but your ex refuses to remove embarrassing photos of the two of you.

Photos shared on social media can simply be a nuisance. But in some cases, they could lead to a lawsuit that the photo-sharer definitely won't "like."

Invasion of Privacy: The Law

So can you sue for invasion of privacy over a Facebook photo? In general, there are four ways to claim invasion of privacy in a lawsuit:

Unreasonable intrusion of solitude. Think "peeping Tom"-type cases in which someone is surreptitiously photographed in a place where they have a reasonable expectation of privacy. Recall TV sportscaster Erin Andrews' invasion of privacy suit against the stalker who took pictures of her in a hotel room and posted them online.

Appropriation of someone's name or likeness. This usually involves the unauthorized commercial use of a celebrity's name or likeness, but private citizens can also pursue "right of publicity" claims. In fact, some users sued Facebook for appropriating their names and images in that famous lawsuit over "Sponsored Stories" that resulted in a multimillion-dollar settlement.

Public disclosure of private facts. If a picture shares a fact that a reasonable person would believe to be extremely private and offensive if disclosed (for example, one's participation in an alcohol-rehab program), then you may have a reason to sue.

False light. This is similar to defamation, but not quite. Defamation requires a statement to be false, but "false light" also includes situations in which a photo is misleading. State laws also generally require it to be offensive to a reasonable person.

If one of these claims applies to your situation, you may indeed have a case. But you may want to try a few other tactics before you sue.

Getting a Photo Taken Down

If you haven't done so already, consider asking the other party to remove the photo. As for asking the website to do it, that can get tricky: Unless the photo involves a gross violation of the law (like child pornography), site administrators may not see an urgent need to take it down.

That's when it may be time to pursue legal action against the person who posted the photo, or the website, or both. Will it be worth the fight? That depends on the facts and circumstances of your case. And only your lawyer can answer that question for you.